Amendment ASA1-AB735

LRBs0303/1

ARG:klm

2021 - 2022 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 735

January 12, 2022 - Offered by Representatives Cabral-Guevara and Murphy.

AB735-ASA1,1,4 An Act to create 36.41 and 38.34 of the statutes; relating to: free speech and academic freedom at University of Wisconsin System institutions and technical colleges, and causes of action against the Board of Regents of the University of Wisconsin System and technical college district boards.

Analysis by the Legislative Reference Bureau

This bill establishes certain standards related to free speech and academic freedom at University of Wisconsin System institutions and technical colleges. For violation of these standards, the Board of Regents of the UW System or technical college district board may be subject to a civil cause of action and must provide certain public notice of the violation.

First Amendment protections

Under the bill, a UW institution or technical college may not do any of the following: 1) restrict noncommercial speech protected under the First Amendment; 2) maintain and enforce time, place, and manner restrictions on expressive activities on the publicly accessible, open outdoor areas of its campus unless those restrictions meet specified requirements; 3) designate any area of a campus a “free speech zone” or otherwise create policies restricting noncommercial expressive activities to a particular area of a campus; 4) charge fees for additional security based on the anticipated content of speech or anticipated reaction to speech; or 5) sanction individuals or groups for discriminatory harassment unless the speech is unwelcome, targets its victim on the basis of a protected class under law, and is demonstrably so severe, pervasive, and objectively offensive that it effectively bars a student from receiving equal access to educational opportunities or benefits. The bill also specifies that all of an institution's or technical college's indoor and outdoor public areas, except classrooms, are considered public forums. An institution or technical college must make every reasonable effort to prevent protected speech and sanctioned events, activities, and instruction from being disrupted.

The bill requires an institution or technical college to annually do all of the following: 1) conduct a survey of all students and employees on First Amendment rights, academic freedom, perceived political or other bias at the institution or technical college, and whether campus culture promotes self-censorship; 2) submit a report to the legislature detailing the results of this survey; and 3) provide all students and employees with instruction in academic freedom, due process, and First Amendment protections.

Academic freedom

Under the bill, an institution or technical college may not sanction an individual on the basis of content or viewpoints expressed while the individual is directly engaged in instruction, research, or service explicitly related to the individual's role as a student or faculty member of the institution or technical college.

Penalty and cause of action

The bill requires a UW institution or technical college that is found by a state or federal court, by a preponderance of the evidence, to have violated any of the free speech or academic freedom provisions described above to include, for 10 years, the following disclaimer on all notices to individuals regarding admission to the UW institution or technical college: “NOTICE: We are required by the State of Wisconsin to inform you that within the last 10 years ... [insert name of UW institution or technical college] has violated the free speech or academic freedom provisions in the Wisconsin statutes.”

Under the bill, the attorney general, a district attorney, or any person whose expressive rights were violated may bring a court action against the Board of Regents of the UW System or the technical college district board for violation by a UW institution or technical college of any of the free speech or academic freedom provisions described above and may seek an injunction and recovery of compensatory damages for persons aggrieved by the violation. In such an action, if the court finds a violation, the court must award to the plaintiffs all of the following: 1) total damages for all persons aggrieved by the violation of not less than $500 for the initial violation plus $50 for each day after the complaint is served that the violation remains ongoing, but not exceeding an aggregate amount of $100,000 for all cases stemming from a single controversy; and 2) court costs and reasonable attorney fees. An award to the plaintiffs of damages, court costs, or attorney fees must be paid from the UW institution's or technical college's administrative expense moneys.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB735-ASA1,1 Section 1 . 36.41 of the statutes is created to read:

AB735-ASA1,3,4 36.41 Campus free speech and academic freedom. (1) Definition. In this section, “employee” means a member of the faculty, academic staff, or university staff assigned to an institution.

AB735-ASA1,3,6 (2) First Amendment protections. (a) An institution may not do any of the following:

AB735-ASA1,3,8 1. Restrict noncommercial speech protected under the First Amendment of the U.S. Constitution.

AB735-ASA1,3,11 2. Maintain and enforce time, place, and manner restrictions on expressive activities on the open outdoor areas of its campus that are generally accessible to the public unless those restrictions meet all of the following requirements:

AB735-ASA1,3,14 a. The restrictions are reasonable, in furtherance of a significant institutional interest, and employ clear, published, content-neutral, and viewpoint-neutral criteria.

AB735-ASA1,3,17 b. The restrictions provide for ample alternative means for communication and allow for members of the institution's community to spontaneously and contemporaneously distribute literature and assemble.

AB735-ASA1,3,20 3. Designate any area of a campus a “free speech zone” or otherwise create policies restricting noncommercial expressive activities to a particular area of a campus.

AB735-ASA1,4,2 4. Charge fees for additional security based on the anticipated content of speech or anticipated reaction to speech.

AB735-ASA1,4,11 5. Sanction individuals or groups for discriminatory harassment unless the speech is unwelcome, targets its victim on the basis of the victim's real or perceived membership in a class protected under federal, state, or local law, and is demonstrably so severe, pervasive, and objectively offensive that it effectively bars a student from receiving equal access to educational opportunities or benefits. This subdivision does not preclude an institution from providing additional resources to a student affected by speech that cannot be sanctioned under this subdivision or from taking nonpunitive actions designed to promote a welcoming, inclusive environment.

AB735-ASA1,4,13 (b) All indoor and outdoor public areas operated by an institution or under the institution's jurisdiction, except classrooms, shall be considered public forums.

AB735-ASA1,4,18 (c) An institution shall make every reasonable effort to prevent protected speech and institution-sanctioned events, activities, and instruction from being disrupted. Nothing in this section shall prevent or inhibit an institution from preventing disruptions or punishing disrupters if the institution, to do so, does not prevent or punish expression that is protected under the First Amendment.

AB735-ASA1,4,19 (d) An institution shall do all of the following:

AB735-ASA1,4,22 1. Conduct an annual survey of all students and employees on First Amendment rights, academic freedom, perceived political, ideological, or other bias at the institution, and whether campus culture promotes self-censorship.

AB735-ASA1,4,24 2. Annually submit to the legislature under s. 13.172 (2) a report detailing the results of the survey under subd. 1.

AB735-ASA1,5,2 3. Annually provide all students and employees with instruction in academic freedom, due process, and First Amendment protections.

AB735-ASA1,5,6 (3) Academic freedom. An institution may not sanction an individual on the basis of the content or viewpoints expressed while the individual is directly engaged in instruction, research, or service explicitly related to the individual's role as a student or faculty member of the institution.

AB735-ASA1,5,14 (4) Penalties; institutional aid. (a) An institution that violates this section, for 10 years following the date of the finding of the violation under par. (b), shall include a disclaimer on all notices, both printed or electronic, to individuals regarding admission to the institution, in a type size no smaller than the majority of the rest of the notice, in substantially the following form: “NOTICE: We are required by the State of Wisconsin to inform you that within the last 10 years ... [insert name of institution] has violated the free speech or academic freedom provisions in the Wisconsin statutes.”

AB735-ASA1,5,17 (b) The penalty under par. (a) applies if a state or federal court in this state finds, on the basis of a preponderance of the evidence, that the institution violated this section.

AB735-ASA1,5,20 (5) Cause of action. (a) Any person identified in par. (b) may bring an action in circuit court against the board for violation of this section by an institution and may seek any of the following:

AB735-ASA1,5,21 1. An injunction against violation of this section.

AB735-ASA1,5,23 2. Recovery from the board of compensatory damages for persons aggrieved by the violation.

AB735-ASA1,5,24 (b) Any of the following persons may bring an action under par. (a):

AB735-ASA1,5,25 1. The attorney general.

AB735-ASA1,6,1 2. A district attorney.

AB735-ASA1,6,3 3. Any person whose expressive rights were violated through the violation of this section.

AB735-ASA1,6,5 (c) Subject to par. (d), in an action brought under par. (a), if the court finds a violation, the court shall award to the plaintiffs all of the following:

AB735-ASA1,6,8 1. Total damages for all persons aggrieved by the violation of not less than $500 for the initial violation plus $50 for each day the violation remains ongoing, which shall accrue starting on the day after the complaint is served on the board.

AB735-ASA1,6,9 2. Notwithstanding s. 814.04 (1), court costs and reasonable attorney fees.

AB735-ASA1,6,14 (d) In an action brought under par. (a), the total damages, excluding court costs and attorney fees, that may be awarded to plaintiffs in a case or cases stemming from a single controversy may not exceed an aggregate amount of $100,000. In violations harming multiple plaintiffs, the court shall divide the damages equitably among them until the maximum award is exhausted, if applicable.

AB735-ASA1,6,18 (e) If a court awards to plaintiffs damages, court costs, or attorney fees in an action brought under this subsection, the board shall pay the total amount of the award from moneys allocated under s. 36.09 (1) (h) to the violating institution for the institution's administrative expenses.

AB735-ASA1,2 Section 2 . 38.34 of the statutes is created to read:

AB735-ASA1,6,21 38.34 Campus free speech and academic freedom. (1) Definitions. In this section:

AB735-ASA1,6,23 (a) “Employee” means a staff member, faculty member, or administrator employed by a district board.

AB735-ASA1,6,24 (b) “Student” means an individual enrolled in a district school.

AB735-ASA1,7,2 (2) First Amendment protections. (a) A district board may not do any of the following:

AB735-ASA1,7,4 1. Restrict noncommercial speech protected under the First Amendment of the U.S. Constitution.

AB735-ASA1,7,7 2. Maintain and enforce time, place, and manner restrictions on expressive activities on the open outdoor areas of district campuses that are generally accessible to the public unless those restrictions meet all of the following requirements:

AB735-ASA1,7,10 a. The restrictions are reasonable, in furtherance of a significant interest of the district board, and employ clear, published, content-neutral, and viewpoint-neutral criteria.

AB735-ASA1,7,13 b. The restrictions provide for ample alternative means for communication and allow for members of the district campus's community to spontaneously and contemporaneously distribute literature and assemble.